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Windfarm Development Overcomes Headwinds: 3 Practical Take-Aways

Published:

February 23, 2024

Author(s):

• Michael Simms
• Alexandra Gosse

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On January 24, 2024, the Nova Scotia Supreme Court upheld the N.S. Environment Minister’s approval of a proposed windfarm development’s environmental assessment, giving the developer the go-ahead to take the next steps to get the project in the air. The Court’s decision in Folly Lake-Wentworth Valley v. N.S. Minister of Environment illustrates how concerned citizens’ groups are increasingly using court processes to challenge proposed developments – and offers project proponents three practical take-aways to help avoid those challenges.

A developer proposed erecting a 17-turbine windfarm in rural Nova Scotia. The N.S. Minister of Environment conditionally approved the project pursuant to the N.S Environment Act. The approval was based on the developer’s submissions, that included a 260-page project assessment, over 2,700 pages of scientific and other documents and public input and information following consultation with Indigenous groups, the public, and multiple departmental briefings. A citizens’ group applied to the Court for judicial review of the Minister’s approval decision and ultimately, to quash it. But the Court decided the Minister’s decision was reasonable and upheld it:

Reasonable Decision. The Court re-confirmed it’s the decision-maker’s job to assess the scientific evidence on which its decision is based. In a judicial review, the Court’s job is to determine whether the decision-maker’s decision was reasonable: within the range of possible outcomes at which they could reasonably arrive. The Court’s job is not to determine whether that decision was “correct”, whether it was the “best” decision or to substitute its own decision. When legislation gives a body the authority to make a decision, the Court owes that decision-maker deference. And it’s for the party opposing the decision to prove that decision was unreasonable.

Legislative Requirements. The Court also re-confirmed the Minister need only comply with the legislative requirements in reaching their decision. Based on the record, the Minister considered all factors the applicable legislation required them to consider. The Court expressly rejected the citizens’ group contention the Minister didn’t “adequately” consider certain factors, characterizing it as an attempt to apply a correctness – as opposed to reasonableness – standard. The legislation required only that the Minister “consider” the factors; that consideration isn’t required to meet a standard the citizens’ group “or anyone else” might consider “adequate”. The Court did specifically note the legislation’s “polycentric” objectives, including “maintaining the principles of sustainable development” and the balancing exercise it requires.

Approval Conditions. The Court finally re-confirmed the Minister’s approval conditions were reasonable and need not meet any “adequacy” threshold. The Court specifically made the “important point” that the Minister’s approval was conditional on the developer’s obligation to comply with other applicable regulatory requirements and in any event any approval wouldn’t exempt the developer from complying with them.

The Court’s decision offers project proponents three practical take-aways to deal with objections to proposed development by citizens and citizens’ groups.

1. Anticipate Citizen Challenges

Individuals and groups opposing development are increasingly voicing their objections to proposed natural resources developments – and increasingly turning to the courts to try to halt or delay them. Take steps to anticipate and plan for these challenges so you’re best positioned to avoid them and, if you can’t, to respond to them.

2. Read the Legislation Carefully

The specific wording of the legislation and the regulations, if any, under which the relevant government or regulatory authority’s decision is issued is crucial. Read it carefully and ensure you have a solid understanding of what the legislation requires of the decision-maker and the decision-making process so you’re well-prepared.

3. Make Your Submission Thorough

Ensure your submission in support of the decision you seek is robust from the outset. If it lacks any information the applicable legislation requires the decision-maker to consider in making their decision, the decision-maker could either send it back for more information or deny it, both costing you time and money. Or if they approve it and that approval is later challenged in a court, that could form a basis for the court to grant the request to quash or delay the decision.

Please contact your McInnes Cooper lawyer or any member of our Renewable Energy Team @ McInnes Cooper to discuss how we can help you obtain – or defend – your development approval.

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